Problems of Compensation for Damage to the Victim of a Crime by

Criminal Means

Natalia Eduardovna Martynenko

, Elena Yurievna Titushkina

Eduard Vladimirovich Martynenko

and Behruz Rustam Bukhorizoda

Federal State Public Educational Establishment of Higher Education «Management Academy of the Ministry of the

Interior of the Russian Federation», 8, st. Zoe and Alexandra Kosmodemyanskikh, 125993, Russia

Educational private institution of higher education «International Law Institute», 3 st. Pionerskaya, Moscow region,

Odintsovo district, Odintsovo, 143002, Russia

State educational institution of higher professional education «Akademy of the Ministry of Internal Affairs»3, St

Mastongulov, 734024, Tajikistan

Keywords: Damage, compensation for damage, victim, criminal law means, criminal law means of compensation for

damage to the victim.

Abstract: The article deals with the problems of the implementation of the constitutional provision on compensation for

damage to the victim of a crime by criminal law means. The purpose of the study is to review the criminal

law provisions that can be used to compensate victims of crime and to develop scientifically based

recommendations to improve their effectiveness. The objectives of the study are: to formulate criminal-law

problems relating to the compensation of victims; to identify the nature and content of criminal-law means of

reparation for victims; and to develop proposals for the improvement of criminal law with regard to the

concerning the compensation of the victim by criminal law means. The methodological basis was the

dialectical method of cognition, which made it possible to study the criminal law problems of compensation

for damage to the victim. As a result of the study, the authors proposed to introduce a number of amendments

to the Criminal Code of the Russian Federation aimed at increasing the efficiency of compensation for damage

to the victim. The provisions and conclusions contained in the work can be used in the subsequent elaboration

of the topic.

1 INTRODUCTION

Every year there are registered more than 2 million

crimes in Russian Federation and more than 1.5

individuals and entities become victims of a crime.

The topic of compensation for damage to the

victim is relevant all over the world. Foreign authors

offer their ways of compensatory justice (Smith,

Hayden P, 2016; Daigle, Leah & Guastaferro, Wendy

& Azimi, Andia, 2016).

Data on the number of persons recognized as

victims of crimes over the past five years are provided

in the Table №1.

Such a large number of persons who have become

victims as a result of the commission of a crime,

indicates the social conditionality of the problem of

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their protection and defence, including by the

criminal law means.

Such a large number of persons who have become

victims as a result of the commission of a crime

indicates the social conditionality of the problem of

their protection and protection, including by criminal

legal means.

Table 2: The Number of Victims by Year.

Years 2016 2017 2018 2019 2020

Number of

victims

1 787 911 1 651

033

1 573

096

1 617

177

1 620

013

Out of them:

Entities 243 673 233

659

237

930

247

365

243

260

Individuals 1 544 238 1 417

374

1 335

166

1 369

812

1 376

753

Martynenko, N., Titushkina, E., Martynenko, E. and Bukhorizoda, B.

Problems of Compensation for Damage to the Victim of a Crime by Criminal Means.

DOI: 10.5220/0010628800003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

60-64

ISBN: 978-989-758-532-6; ISSN: 2184-9854

Table 2: The Number of Victims by Year (cont.).

Years 2016 2017 2018 2019 2020

Number of

reported

crimes with

victims

1 445 332 1 321

987

1 252

670

1 317

824

1 312

427

The number

of registered

crimes

2 160 063 2 058

476

1 991

532

2 024

337

2 044

221

As a result of committing a crime harm (damage)

is caused, the amount of which is (thousand rubles):

2014 г. ‒ 73,905.212, 2015 г. ‒ 157,094.858, 2016 г.

‒259,502.649, 2017 г. ‒236,311.445, 2018 г. ‒

163,537.137, 2019 г. ‒307,627.776, 2020 г. –

149.929.841.

The sum of compensation for damage in court

cases amounted to (thousand rubles): 2014 г. ‒

26,815.647, 2015 г. ‒ 57,037.880, 2016 г. ‒

31,042.666, 2017 г. ‒ 32,453.027, 2018 г. ‒

45,224.324; 2019 г. ‒ 39,291.529, 2020 г. –

55,138.431, which is not over 30% of caused harm

(damage) .

Compensation for damage to the victim is the

prerogative, first of all, of the Civil Code of the

Russian Federation (hereinafter – CC of RF) It

contains the rules on compensation for damage

(Articles1082, 1064 etc. CC of RF).

Criminal procedural legislation is intended to

protect the interests of victims, one of whose purposes

is to protect the rights and legitimate interests of

persons and organizations that have suffered crime

(Code of Criminal Procedure, Article 6). For this

reason, specialists in criminal procedure law

(Bozhiev V.P., 1963; Kolzhin S.V., 2004; Kislenok

S.L., 2010; Kokorev L.D., 1971; Kornelyuk O.V.

2003) are the ancestors of scientific research on the

victim and compensation for damages. A large

number of scientific publications (Davis, Robert &

Johnson, Kalani & Lebron, Michael & Howley,

Susan, 2020; Emily Gilbert (2017); Galghvin,

Miranda & Louran) are devoted in foreign literature

to reparations for the victim (compensatory justice)

Thomas & Simpson, Sally & Cohen, Mark. (2018).

Criminal law, as is well known, defines the

criminality and punishability of an act. The basic

rules and institutions of criminal law are «connected»

with the person who committed the crime. Over time,

however, criminal law has come to realize that it must

also guarantee not only the protection of the victim

(Article 2 of the Criminal Code), but also

compensation for the injury caused to him.

Interest in the victim in criminal law began to take

shape in the 1970s (Dagel, P.S., 1974; Krasikov A.N.,

1976). Since then, much has been done: a different

definition of the victim from that of criminal

procedure has been proposed, containing criminal law

elements, and the specific characteristics of the

recognition of the victim in the event of injury or

threat thereof are shown, Three different types of

victims have been identified (Martynenko N.E.,

2016).

However, modern development of crime

legislation let us to state that the institution of

compensation for damage to the victim is acquiring

special significance today.

A large number of persons annually recognized as

victims, the need to implement the constitutional

provision on compensation to the victim for damage

caused (Article 52 of the Constitution of the Russian

Federation), polemics around the problems associated

with the use of criminal law measures that can

compensate the victim, determine the relevance of the

topic.

2 MATERIALS AND METHODS

The publication is based on the dialectical method of

cognition, which made it possible to consider in detail

and objectively the issues of compensation for

damage to the victim using the norms of the criminal

law.

The logical-legal method made it possible to

propose new approaches to compensation for damage

to the victim. The system analysis made it possible to

propose the concept of "criminal legal means of

compensation for damage to the victim." The

synthesis provided an opportunity to provide

evidence of the need to increase the effectiveness of

criminal law remedies for damages to the victim.

3 RESULTS AND DISCUSSION

As a result of the commission of a crime, the victim

is always harmed. In order to stimulate persons who

committed a crime to compensate for this damage, the

legislator made a "compromise" with the person who

committed the crime and provided in the Criminal

Code of the Russian Federation norms that can be

applied only in case of compensation for damage to

the victim. These norms can be called compensatory.

The inclusion of an increasing number of

compensation norms in the Criminal Code of the

Russian Federation has a dual purpose. On the one

hand, they protect the legitimate interests of the

victim, as they contribute to the earliest possible

Problems of Compensation for Damage to the Victim of a Crime by Criminal Means

compensation for damage. On the other hand, they

allow realizing the principle of humanism enshrined

in Art. 7 of the Criminal Code of the Russian

Federation and minimize criminal and legal

repression against the person who committed a crime.

Compensation norms include: clause "k" Art.61,

Art. 74, 75, 76, 761, 762, 79, 80, 86, 90, 1043 of the

Criminal Code of the Russian Federation. That is,

these are the norms, the condition for the application

of which is the compensation for damage to the

victim.

The appearance of an increasing number of

compensatory in Criminal Code of RF, posed a bunch

of problems, which should be solved.

First. It should be established how much the

victim should be compensated by the person who

committed the crime. The norms of the Criminal

Code of the Russian Federation solve this problem

ambiguously. In some cases, the articles stipulate the

provision on compensation for damage or other

mitigation of harm caused by a crime without

specifying the share of compensation (Articles 75, 76,

762, 86, 90, 1041 of the Criminal Code of the Russian

Federation), in others, it is said about partial or full

compensation damage caused or otherwise

ameliorating harm (Articles 79, 80 of the Criminal

Code of the Russian Federation). In Art. 711 of the

Criminal Code of the Russian Federation contains a

provision not only on compensation for damage, but

also on the transfer to the federal budget of monetary

compensation in the amount of twice the amount of

damage caused. The study of court sentences showed

that there is no unified approach to the amount of

compensation for damage as a condition for the

application of compensation norms. In some cases,

the victim is compensated for the damage in full, in

others - from ten to twenty percent of what was

caused, but in the first and second cases, various types

of exemption from criminal liability are applied to the

person who committed the crime. So, for example,

compensation in the amount of 53,000 rubles, while

the damage was caused in the amount of 196,233, was

recognized by the court's appellate ruling as a

mitigating punishment as a circumstance and entailed

a reduction in the sentence imposed .

The appeal decision of the Volgograd Regional

Court of July 5, 2017 changed the verdict of the

Danilovsky District Court of the Volgograd Region

of July 5, 2017, by which E.I. convicted of a crime

under Part 3 of Article 264 of the Criminal Code of

the Russian Federation. The appellate court indicated

that after the sentencing, the convicted person

partially compensated the moral damage caused to the

victim. In accordance with clause "k", part 1 of article

61 of the Criminal Code of the Russian Federation,

partial compensation for non-pecuniary damage, the

appellate court recognized a mitigating circumstance

and mitigated the imposed punishment .

The results of the survey of the victims showed

that about 90% of them believe that compensation for

damage should be complete and only in this case the

principle of humanism should be implemented in

relation to the person who committed the crime and

compensation norms can be applied to him.

Full or partial compensation is provided not only

in the Criminal Code of the Russian Federation, but

also in the criminal laws of the CIS member states and

in the legislation of European countries (Jennifer

Alvidrez, Martha Shumway. Alicia Boccellari, Jon

Dean Green, Vanessa Kelly, Gregory Merrill, 2008).

In some cases, for the application of compensatory

norms of application, full compensation for harm

(damage) caused as a result of the commission of a

crime is necessary (for example, Article 59.1.13 of

the Criminal Code of Azerbaijan, Article 733 of the

Criminal Code of Kazakhstan, Article 74 of the

Criminal Code of Kyrgyzstan, Article 90, 91 of the

Criminal Code of Moldova, Art.184 of the Criminal

Code of Uzbekistan). In others, it is possible to

partially compensate for the damage (for example,

Art. 59.1.14 of the Criminal Code of Azerbaijan), in

others, it is necessary to compensate at least half of

the amount of damage caused (Art. 88 of the Criminal

Code of Kyrgyzstan).

It seems that the establishment in the Criminal

Code of the Russian Federation and in the criminal

laws of the CIS member states of different rules for

compensation for damage is associated with the

European Convention on the Compensation of

Victims of Violent Crimes, in Article 5 of which the

provision is fixed that “for all or part of the damage,

the upper limit, above which, and the lower limit,

below which the damage will not be compensated ”.

The above provision of the Convention does not make

it possible to enshrine in the Criminal Code of the

Russian Federation a single rule for compensation for

damage, for example, its full compensation as a

condition for the application of compensation norms.

Second. The Criminal Law provides for the

possibility of applying compensation norms only

when a person is released from criminal liability and

on parole from punishment. It seems that the list of

compensatory articles can be expanded and applied

when imposing punishment. This is where the

legislative experience of the CIS member States can

come in handy.

So, paragraph 1 of Article 55 of the Criminal Code

of Kazakhstan provides that voluntary compensation

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

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for property damage, smoothing over moral or other

harm caused by a crime is one of the conditions for

imposing a more lenient punishment than that

provided for a committed criminal offense. In Art. 54

of the Criminal Code of Armenia enshrines the

provision that compensation for damage to the victim

is one of the grounds for imposing a punishment in

the form of community service. According to Art. 481

of the Criminal Code of Uzbekistan, when imposing

a punishment in the form of restriction of freedom,

the court may impose on the convicted person the

obligation to compensate the material and moral

damage caused to him. Since similar norms are

contained in the Criminal Code of the Russian

Federation, it is possible to supplement them with a

provision on compensation for damage to the victim.

Third. Compensation norms are contained only in

the General part of the Criminal Code of the Russian

Federation. The study of foreign experience in the

legislative establishment of compensation norms

shows that in some criminal laws of the CIS member

States, they are also provided for in the Special Part.

Usually, the compensation rate is contained in a note

to a chapter or article of the Special Part of the

Criminal Code. Such a note allows a person who has

committed a particular crime to be exempted from

criminal liability (by analogy with the existing notes,

for example, to Article 126 of the Criminal Code of

the Russian Federation, only containing a claim for

damages).

So in paragraph 5 of the note to chapter 24

"Crimes against property" of the Criminal Code of

Belarus it is said that the person who committed the

crime listed in this note (theft, fraud and a number of

others, committed without aggravating

circumstances) fully compensated the damage

caused, is exempted from criminal liability.

Articles 1851 "Infringement of copyright and

related rights" and 1852 "Infringement of rights to

industrial property objects" of the Criminal Code of

Moldova provide for the possibility of releasing the

person who committed this crime from criminal

liability if he compensated for the material damage

caused or otherwise compensated for the crime

caused harm.

Fourth. Article 208 of the Criminal Procedure

Code of the Russian Federation (hereinafter referred

to as the Code of Criminal Procedure of the Russian

Federation) provides for the grounds, procedure and

terms for the suspension of the preliminary

investigation (clauses 1-4, part 1). According to

official statistics, about a million criminal cases are

suspended annually and, as a result, victims do not

receive compensation for the damage caused. So, in

2016, 987,482 (45.7% of registered) were suspended,

in 2017 - 889,681 (43.2% of registered), in 2018 -

862,844 (43.3% of registered), in 2019 - 917 476

(47.7% of registered), in 2020 - 965 747 (47.2% of

registered), respectively . It seems that this situation

needs to be changed. Moreover, the number of

suspended criminal cases includes cases of grave and

especially grave crimes, including those encroaching

on a person.

The Criminal Code of the Republic of Belarus

followed the path of introducing criminal

compensation into the Criminal Code of the Russian

Federation. Moreover, its payment does not release

the person from the obligation to compensate for the

damage caused by the crime and to pay the proceeds

from crime. Compensation is paid to the deposit

account of the body conducting the criminal

procedure in the amount of fifty percent of the

damage (harm) caused by the crime (Art. 86 of the

Criminal Code).

The way out of this situation is seen in the

ratification of the European Convention on the

Compensation of Victims of Violent Crimes and the

creation of a special fund for compensation for

victims of crimes, to which the perpetrators must

transfer certain amounts as a condition for the

subsequent application of any type of exemption from

criminal liability to them.

Recommendations for the establishment of

foundations for victims of crime are contained in the

Plan of Action for the Implementation of the Vienna

Declaration on Crime and Justice: Responding to the

Challenges of the Twenty First Century (2002) .

4 CONCLUSIONS

The main findings of the research:

1. The criminal-legal consequences of a

committed crime should depend on the amount of

compensation for damage to the victim. With full

compensation for damage, the punishment should be

less than with partial compensation.

2. The list of criminal law norms containing

provisions on compensation for damage to the victim

can be expanded by extending compensation norms

to the provisions of the criminal law on: types of

punishment (this list may include the following

articles: 46 "Fine", 49 "Compulsory work", 50

"Correctional labor"; sentencing (Article 64

"Imposition of a lighter punishment than provided for

this crime).

3. Compensation norms can be contained not only

in the General, but also in the Special part of the

Problems of Compensation for Damage to the Victim of a Crime by Criminal Means

Criminal Code of the Russian Federation. To do this,

it is necessary to include in chapter 21 “Crimes

against property, a note that reads: persons guilty of

crimes under chapter 21 can be exempted by the court

from punishment if they have returned what they

received or fully reimbursed its value. The note does

not apply to particularly serious crimes”.

4. If the person who committed the crime is not

found or cannot compensate for the harm caused, the

state should assume this responsibility by creating a

special fund for assistance to victims of the crime.

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ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”